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Our difference is our courtroom experience. Successful litigation law firms are good at civil discovery, document management, law and motion work, and negotiating settlements. At Hornberger & Brewer, we have the resources for document-heavy and complex litigation. We do all that, and we do it well. But, we go an extra step. Several times per year over the last 30 years, we have been taking cases to trial. That is where we connect with juries, persuade them to see our clients' viewpoint, and come back with excellent results. Take a moment to click on the following link to access our litigation newsletter, which will give you general information on the litigation process.

Administrative Hearings

The US Customs Service, the FCC, the SEC: Often referred to as the "fourth branch of government," administrative agencies such as these are tasked with both creating and enforcing rules that govern specific, usually narrow areas of authority. In carrying out their mission, administrative agencies exercise powers traditionally divided between the legislative branch (rulemaking), the judicial branch (adjudication) and the executive branch (enforcement). Since they aren't actually under the judicial branch, however, the adjudication process in administrative agencies differs in some important ways from the process followed in a court of law.

In most circumstances, a formal administrative adjudication takes place through a trial-type hearing, which may then be appealed to the agency head or other appropriate reviewing authority. The hearings are generally presided over by an administrative law judge (ALJ). Conceptually similar to a civil trial, these hearings vary significantly in practice.

As with trial court proceedings, parties to formal adjudication are entitled to receive notice of the adjudication process. The Administrative Procedure Act — which, among other things, controls the administrative hearing process for federal agencies — states that parties must be "timely informed" of the time and place of the hearing, the authority on which the agency is relying, and the matters of fact and law that are in question.

The process typically begins with prehearing conferences, where motions may be heard on pleadings previously submitted. Once at the hearing stage, some agencies allow for an interval hearing in which the government will present its case and then the matter will be recessed, sometimes for months, to allow for the opposing party to prepare a defense. This differs substantially from civil trials, which generally allow for little or no delay between the presentation of the cases.

The discovery process also highlights a significant divide between administrative hearings and civil trials. In civil litigation, discovery is typically an open process, with most safeguards designed to protect, rather than omit, potentially relevant information. In administrative adjudications, the method and breadth of discovery is typically left to the discretion of the particular agency, as expressed in the governing statutes and agency internal rules. Consequently, the discovery practices between each agency often differ, and are commonly more limited than those used in civil courts.

On the other hand, administrative adjudications usually allow for broad presentation of evidence. For example, the APA is much more relaxed than the Federal Rules of Evidence when it comes to the admission of hearsay evidence: As a matter of policy, the APA allows for the admission of any evidence which is not irrelevant, immaterial or unduly repetitious. Of course, an individual agency may have different rules for admissibility of evidence in practice. In fact, a few agencies have adopted the Federal Rules of Evidence as their own and therefore apply the stricter rules prohibiting hearsay evidence in their adjudications

If formal adjudication is not required under the APA, matters are typically subject to informal adjudication, which is often governed by a special procedure set forth in the particular agency's governing statute or the agency's own regulations. Informal adjudications are rarely presided over by ALJs, but are instead handled by presiding officers. Importantly, regardless of whether adjudication is formal or informal, the requirements of procedural due process must be met. Further, in almost every case, some type of judicial review of an agency determination is potentially available.

The practice of administrative law is quite unlike civil trial practice: If you find yourself subject to an administrative hearing, assistance from an attorney experienced in administrative law matters will be invaluable.

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